IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
KENNETH TYRONE LINTON,
Appellant,
v. Case No. 5D15-4394
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed March 10, 2017
Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.
James S. Purdy, Public Defender, and
Nancy Ryan, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona
Beach, for Appellee.
EDWARDS, J.
Kenneth Linton (“Appellant”) was the gunman and driver in an armed carjacking.
He asserts on appeal that his convictions and resulting sentences for one count of first-
degree murder with a weapon felony murder (Count I), one count of fleeing or attempting
to elude a law enforcement officer causing serious injury or death (Count II), and one
count of driving without a valid license causing serious bodily injury or death (Count IV)
violate Florida’s double jeopardy law. We agree and remand for the trial court to vacate
Appellant’s current judgments and sentences as to Count II and Count IV with instructions
to enter modified judgments and sentences.
As Phillip Sagan got out of his car to close the gate in front of his house late one
evening, two males, one of whom was Appellant, approached him. Appellant raised a
gun to Mr. Sagan’s head and said, “Don’t move, I will shoot you right here.” Appellant
then drove away in Mr. Sagan’s car with the other man in the passenger seat. Mr. Sagan
immediately called 911 and police responded quickly.
Officers in two patrol vehicles, with emergency lights and sirens activated, pursued
Appellant in the speeding car. During this high speed pursuit, Appellant ran multiple red
lights and reached speeds in excess of 100 miles per hour. The car crashed and rolled
over; both occupants were ejected. Appellant landed near the driver’s side of the car and
officers immediately secured him. When asked, Appellant immediately admitted that he
was driving the car. Appellant’s passenger, seventeen-year-old David Jones, died from
injuries suffered as a result of the accident. Police recovered a firearm from the car.
Appellant was charged by indictment with one count of first-degree murder with a
weapon (Count I), one count of fleeing or attempting to elude a law enforcement officer
causing serious injury or death (Count II), one count of vehicular homicide (Count III), and
one count of driving without a valid license causing serious bodily injury or death (Count
IV). During the jury trial, the State presented evidence showing Appellant’s involvement
in the carjacking, high speed pursuit, and fatal crash. Appellant did not have a valid
driver’s license on the date of the car crash.
2
The jury found Appellant guilty as charged on all four counts. The trial court
sentenced Appellant to life in prison for Count I, thirty years in prison for Count II, fifteen
years in prison for Count III, and five years in prison for Count IV, all to run concurrently.
Appellant moved for a new trial and for dismissal of Counts III and IV based on double
jeopardy. The trial court granted his motion to dismiss as to Count III, but denied it as to
Count IV.
Appellant contends that the enhanced convictions of Counts II and IV must be
vacated because a single course of conduct causing a single death cannot support
convictions for both a homicide offense and an offense enhanced by the same death.1
Appellate courts review double jeopardy claims de novo. Pizzo v. State, 945 So. 2d 1203,
1206 (Fla. 2006).
The Florida Supreme Court has stated, “Florida courts have repeatedly recognized
that the legislature did not intend to punish a single homicide under two different statutes.”
Houser v. State, 474 So. 2d 1193, 1197 (Fla. 1985) (citations omitted). Based on this
rule, the Florida Supreme Court held that a defendant could not be convicted of both DUI
manslaughter and driving while license suspended causing the death of another human
where only one death resulted. State v. Cooper, 634 So. 2d 1074, 1075 (Fla. 1994). The
Court explained, “It is entirely appropriate to convict a person of both DUI manslaughter
and driving while license is suspended, but it is inappropriate to enhance the degree of
1 Appellant did not preserve the issue of whether the Count II conviction violates
the prohibition against double jeopardy because he only raised the double jeopardy issue
as to Count IV before the trial court. However, this Court may still review the issue as to
Count II because “such a claim raises a question of fundamental error that can be raised
for the first time on direct appeal.” Bailey v. State, 21 So. 3d 147, 149 (Fla. 5th DCA
2009) (citations omitted).
3
both crimes by using a single homicide.” Id. at 1074-75. “[T]here can be but one penalty
imposed for causing the death of a single victim.” Id. at 1074; see also Houser, 474 So.
2d at 1196-97 (holding that defendant cannot be punished for both DWI manslaughter
and vehicular homicide for a single death); Thomas v. State, 837 So. 2d 443, 447 (Fla.
4th DCA 2002) (holding that defendant could not be convicted of both second-degree
murder and driving while license suspended causing death because “double jeopardy
principles prohibit convicting and sentencing appellant for the two homicide offenses
arising out of a single death”).
Applying Cooper, Houser, and Thomas to the instant case, we find that Appellant
was properly found guilty and sentenced to life in prison on Count I, the first-degree
murder of his passenger; however, Counts II and IV cannot be enhanced by that same
homicide.
The First District reached a different conclusion in a similar case, McKinney v.
State, 51 So. 3d 645 (Fla. 1st DCA 2011), in which it held that the defendant, who caused
a single collision-related death, could be convicted and sentenced for both third-degree
felony murder and fleeing or attempting to elude a law enforcement officer causing death,
without violating double jeopardy.2 51 So. 3d at 648-49. McKinney carjacked a van, led
police on a high speed chase, drove erratically, and collided with another car, killing its
driver. Id. at 646. The First District rejected McKinney’s claim that he was being punished
twice for the death of a single victim, reasoning that the crime of fleeing or eluding is not
a “homicide offense” because felony fleeing and eluding can be committed without
2 McKinney refers to section 316.1935(3)(b), Florida Statutes (2008), which
includes the element of causing serious injury or death, as “fleeing and eluding.”
4
causing a death. Thus, the court in McKinney reasoned, since “fleeing and eluding” is
not a “homicide offense,” the defendant was not being punished twice for one death, even
though high-speed fleeing and eluding can be enhanced, as it was in that case, from a
second-degree to a first-degree felony if the fleeing and eluding resulted in the death of
a person. Id. at 648-49; see also § 316.1953(3)(a)-(b), Fla. Stat. (2008).
The McKinney case does not discuss Cooper. We cannot reconcile McKinney and
Cooper because McKinney held that a criminal defendant could be punished more than
once for the same death if the underlying charged crime could be committed without
causing a death, contravening Cooper’s holding that a criminal defendant cannot be
punished more than once for the death of a single victim.
Notably, in a more recent case, Crusaw v. State, 195 So. 3d 422, 422-23 (Fla. 1st
DCA 2016), the First District held that “double jeopardy principles barred Crusaw’s
conviction for careless driving with a suspended license resulting in death or serious
bodily injury” when he was also convicted of vehicular homicide for the same death. The
First District cited Cooper as controlling and did not mention its own McKinney decision.
See Crusaw, 195 So. 3d at 422. Here, we are obliged to follow Cooper because we must
follow the precedent set by the Florida Supreme Court. See Hoffman v. Jones, 280 So.
2d 431, 440 (Fla. 1973).
Accordingly, we affirm the conviction and sentence for first-degree murder, but
reverse and remand with instructions for the trial court to: (1) vacate the current judgment
and sentence for Count II and enter judgment convicting Appellant of fleeing or attempting
to elude a law enforcement officer in violation of section 316.1935(3)(a), Florida Statutes
(2008); and (2) vacate the current judgment and sentence for Count IV and enter
5
judgment convicting Appellant of driving without a valid license. The trial court shall also
conduct appropriate proceedings to resentence Appellant based on his modified
convictions. We sua sponte certify the conflict between McKinney and our case, and the
apparent conflict between McKinney and Cooper.
REVERSED and REMANDED with instructions; CONFLICT CERTIFIED.
SAWAYA, J., concurs.
BERGER, J., dissents with opinion.
6
BERGER, J., dissenting. 5D15-4394
Because I believe the majority’s reliance on Cooper to support its decision is
misplaced, I respectfully dissent. In my view, McKinney and Cooper are readily
distinguishable and no conflict, either real or apparent, exists between the two. 3 With that
said, because the facts of this case are nearly identical to McKinney, and because I agree
with Judge Wetherell’s well-reasoned opinion in that case, I would affirm.
3 Likewise, I believe McKinney and Crusaw are distinguishable.
7